Dáil debates

Wednesday, 24 June 2020

Offences against the State (Amendment) Act 1998 and Criminal Justice (Amendment) Act 2009: Motions

 

10:20 am

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I welcome the opportunity to speak in this important debate. Fianna Fáil will be supporting these motions. I welcome the Minister's statement emphasising that there will be a review of security legislation. He said it is ongoing in his Department.

We need to examine the two items of legislation separately because they relate to more than simply the Special Criminal Court. Let us examine the 1998 legislation, introduced in the aftermath of the Omagh bombing. This House and the Seanad decided the provisions introduced in the Offences Against the State (Amendment) Act 1998 were of such considerable power that they should be renewed and reviewed annually by both Houses of the Oireachtas. The reason was the Oireachtas recognised at the time that these were considerable powers.

It is important to note, however, that the 12 sections that have to be reviewed each year are not all just about the creation of new offences. For instance, three of the sections under the 1998 legislation, sections 2, 3 and 4, are evidential provisions that make it easier to prosecute subversives before the courts. There are, however, a number of new offences provided in the 1998 legislation, such as sections 6, 7, 8, 9 and 12. Section 14 provides that those new offences under the 1998 Act are to be scheduled offences under Part V of the Offences Against the State Act 1939.

A good point made by persons who are concerned about the operation of the 1939 Act is that it is an anachronism and needs to be updated. There is some merit in that argument. The 1939 Act was enacted in June 1939 because of the then threat of a European war, which came to pass. In August 1939, the then Government made a declaration, under section 35 of the Act, that the ordinary courts were inadequate to deal with the administration of justice in certain instances. That declaration, which can be made under section 35, existed from August 1939 until after the Second World War, in 1946.

A second declaration was made by the Government in August 1972. It was made because of the violence in Northern Ireland and the troubles that existed on this island. There is validity to the point that this declaration, which has been in operation for the past 48 years, does not really reflect the threat from subversives that exists today but rather the historic threat that existed in the 1970s.

Fortunately, in this country, political violence and terrorism have reduced significantly. The Good Friday Agreement was a great achievement of all politicians in this country. It was also a great achievement of my party, if I can claim some ownership of it. Its effect was that political violence and terrorism on the island reduced considerably. One of the requirements of the Good Friday Agreement was that there would be a review of the Offences Against the State Act. A committee was established under the chairmanship of former Supreme Court judge Anthony Hederman to review it. That review took place in the aftermath of the horrific Omagh bombing, so it was not surprising that the committee recommended, by majority, that the provisions should remain as they are because of the significant threat that was posed to the State by subversive organisations.

Regrettably, I agree with the Minister that strong legislation is needed to deal with subversive organisations that are still in the country. We need to recall that Ms Lyra McKee was murdered not that long ago by dissident republicans. The threat that exists is evident from the report that has been presented by the Minister. He stated there were 146 arrests under the provisions of the Offences Against the State Act and that 40 of these arrests relate to provisions enacted in 1998. The Offences Against the State Act 1998 needs to remain in place but we need to examine and review the anachronistic provisions dating from 1972.

There can be no doubt that the greatest criminal threat currently posed to the people of this country is not from dissidents or international terrorism but rather gangland criminals who murder children and who used children from disadvantaged communities to promote their crimes and make vast amounts of money for themselves. It is for that reason that, back in 2009, the Oireachtas enacted the Criminal Justice (Amendment) Act 2009, which provides for four new offences to deal with gangland criminals. In particular, it provides that individuals can be prosecuted for directing or assisting gangland crime organisations. That legislation is extremely important and it must be kept in place. We can see from the report being put before the House by the Minister that there were 29 arrests under section 72 of the Act and 43 arrests under section 73.

The Garda Síochána has had great success in recent years in prosecuting gangland crime because of the powers that the Oireachtas provided in 2009. I would prefer if all crimes could be prosecuted in courts where juries would decide the outcome of serious criminal charges, but I recognise that we have a responsibility to ensure we do not put ordinary citizens from the electoral register, who make up the jury list, in a position where they would be exposed to a significant threat. If people do not believe me on that, I ask them to reflect on what Mr. Justice Peter Charleton and Mr. Paul Anthony McDermott stated in an article from 2000. They said it is expecting too much to expect citizens to sit on juries in gangland trials and face the prospect of intimidation or trickery.

I know very many well-intentioned people have asked whether we can introduce mechanisms whereby the jury would not be identified by the persons being prosecuted. That can be very difficult and can also give rise to potential miscarriages of justice. Any jury hearing a serious criminal trial must be assembled together and they must be in the same location as the judge. This is so the judge can effectively supervise the jury and ensure everybody is paying attention to the evidence. It is to ensure that if there is some sort of remote jury involvement, the members are not doing something else, which could lead to a miscarriage of justice.

The Special Criminal Court is still necessary in cases of gangland crime because it is so easy to identify and follow a juror. Going to the courts of criminal justice at 4.30 p.m. one would see people leaving the complex on their way home, and very many of them are jurors. It is easy to follow them and identify where they live. The crime of embracery is ancient but it is the crime of trying to nobble, corrupt or intimidate a jury. It happens, and I regret that we have seen in this jurisdiction that gangland criminals will murder children and journalists and intimidate witnesses. They will take any steps to ensure a criminal prosecution against them can be disturbed. It is for that reason we need to continue with the provisions of the Criminal Justice (Amendment) Act 2009.

It is important to point out that this is not an academic motion. The deadline for the continuation of the provisions is midnight on Monday, and if a resolution is not passed by the Seanad at that stage, the offences covered will no longer be in operation. That does not mean people who previously committed those offences cannot be held liable as they were offences at the time they committed them. However, it would unquestionably raise a question mark over any prosecutions pending before the Special Criminal Court pursuant to resolutions if no such resolution is made by the Seanad.

I have spoken to Deputy Martin Kenny and will listen with great interest to his speech. If it is the case that Sinn Féin will support these motions, it would be a significant and positive political development.

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